State v. Simmons ( 1982 )

286 S.E.2d 898 (1982)

STATE of North Carolina
v.
Irving Houston SIMMONS.

No. 8118SC769.

Court of Appeals of North Carolina.

February 16, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., David Gordon and Sp. Deputy Atty. Gen. Jo Ann Sanford, Raleigh, for the State.

Appellate Defender Project for North Carolina by Appellate Defender Adam Stein, Raleigh, for defendant-appellant.

ROBERT M. MARTIN, Judge.

Prior to his trial, defendant filed a motion requesting that the State be required to furnish the identity of an informant or, in the alternative, that the cases against him be dismissed. The person defendant wanted identified in full was the man called "Pete." The record shows that, on the day of the trial, his full name was divulged. Defendant's alternative motion to dismiss was denied by the trial court.

The defendant now assigns as error the trial court's denial of his motion to disclose the full identity of "Pete" and his motion to dismiss. Citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and our recent case, State v. Hodges, 51 N.C.App. 229, 275 S.E.2d 533 (1981), the defendant contends that the court's denial of his motions deprived him of his constitutional rights to present a defense, to confront his accusers, and to be afforded fundamental fairness and due process of law.

The State has the privilege, in appropriate situations, to withhold from disclosure the identity of persons who furnish to law enforcement officers information concerning violations of laws which the officers must enforce. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938). The purpose of this privilege is to advance and protect the public interest in effective law enforcement. Roviaro v. United States, supra. The privilege, however, has certain limitations, one of which arises from the fundamental requirements of fairness to the accused. Id. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

With these principles guiding our analysis of the factual situation in the case sub judice, we have determined that defendant's constitutional rights were not violated by the trial court's denial of his motions for disclosure and dismissal. It is important to note that there was nothing in the record to indicate that "Pete" was an informer or that he participated in the drug transaction for which defendant was tried. The State in no way relied on "Pete's" activities to gain an indictment against, or a conviction of, the defendant. When we contrast this with the factual setting in Roviaro, we find that that case's limitation on the State's privilege does not apply here. In Roviaro, the informant, "John Doe," was the person actually purchasing the drugs from the defendant. Defendant's convictions were obtained through testimony of alleged witnesses who observed the transactions without defendant's knowledge. As the Supreme Court noted, as far as Roviaro knew, he and "John Doe" were alone and unobserved during the crucial occurrence for which he was indicted. By contrast, in the case before us, Officer Farrish was the one who purchased the drugs from defendant, and she was the prosecuting witness against him. The State's case did not require any evidence concerning "Pete."

Moreover, we find that the Hodges case which this Court recently decided is distinguishable. In Hodges, unlike this case, the person whose name was undisclosed was allegedly a participating informant. Furthermore, once the defendant discovered the name of the informant (the day before trial) he moved for a continuance, but the motion was denied. This Court found that denial error. In the present case, defendant made no motion for a continuance. Once he received the full name of the person whose identity he sought, he was, as the record shows, adamant about a dismissal:

THE COURT: Well, what is your motion now, Mr. Carroll?

MR. CARROLL: I made my motion in the alternative, either disclosure or dismissal of the cases.

THE COURT: Either disclosure or dismissal?

MR. CARROLL: Yes, sir.

THE COURT: Well, he has now disclosed it.

MR. CARROLL: I can only repeat what I have said. As far as disclosure goes, we don't have reasonable access to him at this stage.

Based on the foregoing, we conclude that defendant's constitutional rights to present a defense, to confront witnesses against him, and to be afforded fundamental fairness and due process of law were not violated.

Defendant's second argument is that he did not receive a fair trial and due process of law when the State cross-examined the defendant about his prior criminal record. The record shows, however, that defendant objected to only two of the questions to which he now takes exception. Those objections were sustained. Of the other eleven exceptions, defendant's failure to object to the questions acted as a waiver of his objections so that admission of the evidence will not be reviewed on appeal unless the evidence was forbidden by statute or resulted from questions asked by the trial judge or by a juror. State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534, cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970). The two exceptions allowing review by this Court are not present here, and the cases defendant cites in support of his argument that we should waive the requirement of an objection are not pertinent. State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978), State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971), and State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967), all involved improper or abusive comments or arguments made by the solicitor. Defendant's assignment of error is overruled.

For the same reason, we reject defendant's argument that he was deprived of a fair trial and of due process of law when the State asked the defendant questions concerning what statements he had made to a police officer. Defendant's failure to object to the questions constituted a waiver of his objections, and this Court is not compelled to review the matter on appeal.

Defendant's fourth assignment of error raises the question of whether he was denied his constitutional guarantee to effective assistance of counsel at the trial on the habitual felon indictment when the court denied his request for appointment of new counsel and left the defendant to represent himself. The right of defendant to be represented by counsel is well-established, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Such a right can be effectively waived where the waiver is voluntary and informed. The issue before us is whether defendant voluntarily and with knowledge of the consequences waived his right to counsel. We find that the record shows that the defendant understood the serious consequences of his proceeding without counsel but that defendant voluntarily chose to have counsel discharged.

In cases where a defendant requests to proceed at trial without assistance of counsel, the trial court must make a thorough inquiry to determine whether to allow or deny the request. G.S. 15A-1242. In order to allow the motion, the court must be satisfied that the defendant:

(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

(2) Understands and appreciates the consequences of this decision; and

(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

G.S. 15A-1242.

The record reveals that, after the jury returned a guilty verdict on one count and was deliberating on the second, the defendant requested that his court-appointed attorney be discharged. The trial court, after colloquy with the defendant, found his counsel competent and refused defendant's request. Defendant impressed upon the court that he wanted newly-appointed counsel or none at all. The following excerpts from the record show parts of the colloquy which preceded the court's decision:

THE COURT: You understand your case has been tried and they have returned one verdict of guilty against you and that they are out finishing the verdict on the other case.

Then there is another proceeding that we will go into after this to determine if you are an habitual felon. And if you are an habitual felon, that increases the time you could be given.

. . . . .

THE COURT: You have Mr. Carroll to represent you. And, as I say, if the Jury finds you guilty of being an habitual felon, the punishment goes up from twenty years to life imprisonment.

MR. SIMMONS: That is one of the reasons I would like to have a competent attorney to represent me.

THE COURT: I haven't seen anything to determine that Mr. Carroll is not competent just because you don't agree eye to eye on everything. He has more knowledge of the law than you have.

MR. SIMMONS: That is not the issue.

. . . . .

THE COURT: ... And on these grounds, I am not going to relieve Mr. Carroll and appoint you another attorney.

Now, if you want to be tried on the remaining phases of this case without a lawyer, you have that right, but that is for you to decide, not me.

. . . . .

MR. SIMMONS: I will appear in the remaining phases by myself.

THE COURT: Do you understand that when you represent yourself there is some danger to it for the reason of your not being trained in the law and certain things like being tried under the law gives a person advantages?

MR. SIMMONS: Yes, sir.

We find from the foregoing, that the trial court met the requirements of G.S. 15A-1242 and that defendant voluntarily and understandingly waived his right to counsel.

Defendant's final argument is that the evidence by the State was insufficient to prove that the substance purchased by Farrish was a controlled substance. The record belies this argument. The forensic chemist of the State Bureau of Investigation testified without objection that "the white powder was the substance cocaine, which is a Schedule II controlled substance."

In defendant's trial, this Court finds

No error.

MORRIS, C. J., and HEDRICK, J., concur.